Addressing the current trends in the enforcement of the EU Competition Law and Identifying the diversity challenge in different jurisdictions

Fines from oversight authorities continue to sky rock. From 1995 to 1999, cartel fines totaled 292 million euro ($400 million); in the next five years to 2004; they jumped to 3.5 billion euro ($4.8 billion), in the next five years ending in 2009, they tripled over those previous five years to 9.4 billion euro ($12.9 billion) and the estimates until end 2014 could be well above the 10,0 billion euro mark. ($13.7 billion) These fines imposed are not adjusted for Court judgments (1).

Monitoring and evaluating the mitigation on global infringement of competition and antitrust law with cross-border jurisdictions, and implementing related updates of regulatory compliance is now high on the corporate agenda. Like most oversight authorities, the EU commission on competition is taking a rather firm stand on compliance enforcement and fines have multiplied over the past years.
Therefore, regulatory compliance is vital for global companies that policies and procedures are enforced and monitored in view of the damage to the reputation associated with violations. The current EU enforcement and cartel raids can jeopardize mergers and acquisitions therefor directors and senior management promote greater emphasis on the strength of the company's ethics and compliance program to reduce the size of possible cartel fines.

In order to increase the quality of the compliance program as a way to encourage good corporate behavior throughout the organization companies focus on the following components.

- Increased insistence on transparency
- Efforts to streamline enforcement procedures
- Increased emphasis on the right of defense and due process;
- Mechanisms to improve the efficient operation of leniency applications
- Since fines are proportionate to the breach being punished, how can general GRC components like transparency, accountability, stewardship, approvals help?
- Define the specific criteria under which parent companies are liable for cartel-like behavior by their subsidiaries.
- Basic principles of avoiding engagement in anti-competitive behavior.
In short an effective deterrent is to encourage the implementation of adequate Good Governance, Risk Management and Compliance.

The European Commission enforces EU competition law under two provisions. Article 101 of the EU Treaty bans collusion among companies to fix prices or allocate markets and its enforcement has resulted in the massive anti-cartel fines referenced above. Article 102, which bans an abuse of a dominant market position, formed the basis for the huge fines levied against Microsoft and Intel.

The European Parliament has adopted a resolution concerning the European Commission’s 2008 Report on Competition Policy, where it reaffirmed the Commission’s rigorous competition law enforcement, highlighted by the following statement:
- Cartels are among the most serious violations of competition law,
- Cartels disrupt the value chain, and are detrimental to consumers and have a very negative impact on the economy.

Copenhagen Compliance will conduct a roundtable will focus on how companies can develop and monitor the process with instruments and cultivate a corporate culture to ensure compliance with the competition laws. To register send an email to: info@copenhagencompliance.com

Kersi Porbunderwalla is the founder and CEO of
Riskability®, Copenhagen Compliance® and Copenhagen Charter®.

After his early retirement from ExxonMobil, Kersi
has been involved in several Global Good Governance, Risk Management and
Compliance (GRC) Projects for multinationals like IBM, Shell, BP, Volvo and
others.

He continues to implement GRC journeys for a
variety of clients to develop custom tailored GRC folder that includes
methodologies, roadmaps, and specific solutions to assignments, training and
certification.

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